Madhya Pradesh High Court
Bhavya Choudhary vs Madhuri Choudhary on 19 April, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 19th OF APRIL, 2024
MISC. CRIMINAL CASE No. 8107 of 2024
BETWEEN:-
BHAVYA CHOUDHARY D/O VIJAY KUMAR
CHOUDHARY, AGED ABOUT 37 YEARS,
OCCUPATION: BUSINESS, R/O 905-906
INDRADARSHAN BUILDING 19, NEAR MILLAT
NAGAR, NEW LINK ANDHERI (WEST),
1.
MUMBAI (MAHARASHTRA)
THROUGH MANJRI CHOUDHARY VIDE
POWER OF ATTORNEY DATED 28.07.2022
BEARING REGISTERED NO. MP
179152022A4794918
DIVYA CHOUDHARY THROUGH MANJRI
CHOUDHARY VIDE POWER OF ATTORNEY
DATED 03/07/2023 D/O VIJAY KUMAR
CHOUDHARY, AGED ABOUT 35 YEARS,
OCCUPATION: BUSINESS 905-906
INDRADARSHAN BUILDING 19, NEAR MILLAT
2.
NAGAR, NEW LINK ANDHERI (WEST),
MUMBAI (MAHARASHTRA)
THROUGH MANJRI CHOUDHARY VIDE
POWER OF ATTORNEY DATED 03.07.2023
BEARING REGISTERED NO. MP
179152023A42076187
.....APPLICANTS
(BY SHRI SANATH PARASHAR - ADVOCATE (THROUGH VIDEO
CONFERENCING) )
AND
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 24-04-2024
15:31:37
2
MADHURI CHOUDHARY W/O SANJAY KUMAR
CHOUDHARY, AGED ABOUT 55 YEARS,
1. OCCUPATION: BUSINESS 8TH FLOOR,
BRILLIANT PLATINA SCHEME NO. 78 PART II
VIJAY NAGAR INDORE (MADHYA PRADESH)
DHRUV CHOUDHARY S/O SANJAY KUMAR
CHOUDHARY, AGED ABOUT 35 YEARS,
2. OCCUPATION: BUSINESS 8TH FLOOR,
BRILLIANT PLATINA SCHEME NO. 78, PART II,
VIJAY NAGAR, INDORE (MADHYA PRADESH)
DEVIKA CHOUDHARY D/O SANJAY KUMAR
CHOUDHARY, AGED ABOUT 32 YEARS,
3. OCCUPATION: BUSINESS R/O 8TH FLOOR,
BRILLIANT PLATINA SCHEME NO. 78, PART II,
VIJAY NAGAR INDORE (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
This application coming on for admission this day, Justice Pranay Verma
passed the following:
ORDER
1. Learned counsel for the applicants is heard on the question of admission.
2. This application under Section 340 of the Cr.P.C. has been filed by the applicants for initiation of appropriate proceedings against respondents 1, 2 and 3 for flase claims made in Writ Appeal No.793/2023.
3. Before adverting to the averments as made in the application, it would be appropriate to refer to Section 340 of the Cr.P.C. which is as under :-
"340. Procedure in cases mentioned in section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 3 clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
1[(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, "Court" has the same meaning as in section
195."
4. Section 340 of the Cr.P.C. has rerferance to offences in Clause (b) of Sub Section (1) of Section 195 of the Cr.P.C. hence it would be appropriate to refer to the said provision also which is as under :-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--(1) No Court shall take cognizance--
....
....
....
(b) (i) of any offence punishable under any of the following Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 4 sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-
clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.]"
5. Section 195(1)(b) of the Cr.P.C. has reference to various offences punishable under the IPC. The applicants have sought action under the follow provisions :-
"191. Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
192. Fabricating false evidence.--Whoever causes any circumstance to exist or 1[makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement,] intending that such circumstance, false entry or false statement may appear in evidence n a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 5 such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said "to fabricate false evidence".
193. Punishment for false evidence.--Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
196. Using evidence known to be false.--Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.
199. False statement made in declaration which is by law receivable as evidence.--Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.
200. Using as true such declaration knowing it to be false.-- Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in thesame manner as if he gave false evidence.
Explanation.--A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of sections 199 and 200.
205. False personation for purpose of act or proceeding in suit or prosecution.--Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 6 shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
209. Dishonesty making false claim in Court.--Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
6. Thus for initiation of proceedings under Section 340 of the Cr.P.C. the above offences referred to by the applicants would have to be shown to have been committed. Now it would be relevant to notice the averments as made in this application as regards the claim of the non-applicants in Writ Appeal No.793/2023 which as per the applicants were false. The necessary averments are as under :-
"15. That in Para 3 (Page No. 2) of the Written Submissions to the instant appeal, the Respondents have made the following claim:
"....In the year 2008, Shri Vijay Choudhary (Karta of Appellants Family) and Shri Sanjay Choudhary (Karta of Respondents Family) decided to partition survey no. 3/1 and 3/2 equally between the family members of both the families, it was mutually decided that survey no.3/1 would go to Appellants & their family members and survey no. 3/2 would go to Respondents. Accordingly, survey no.3/1 was divided into three parts i.e. 3/1/1, 3/1/2 and 3/1/3 by the order of Fard Batwara and survey no.3/2 was divided into three parts 3/2/1, 3/2/2 and 3/2/3 by the order of Fard Batwara."
Apparent Fact There was never any mutual family agreement and settlement among the members of the families of Shri Vijay Choudhary and Shri Sanjay Choudhary. All the members of the family were major in 2008 and 2010, therefore, there was no role or authority vested with HUF or their Karta. Even the HUF did not have any ownership of the subject land. The Respondents have never produced any tangible evidence to support their contentions. Therefore, this statement is apparently false and untenable on the face of the record.
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 716. That in Para 6 (Page No. 5) of the Written Submissions to the instant appeal, the Respondents have made the following claim:
"That, from bare perusal of the Application for Condonation of Delay filed by the Appellants before the Sub-Divisional Officer (part ofAnnexure P/6 at Page No. 214-216) would reveal that the father of the Appellants used to look after the properties. The Bhu Adhikar and Rin Pustika filed by the Appellants before the Sub- Divisional Officer containing the photograph of the Appellants and the details of the Fard batwara case number and order dated 29.03.2010 (filed by the Respondents before this Hon'ble Court as Annexure R/3 and R/4) were handed over to their Father. It is further stated that their father took custody of the documents and did not carefully examine them. It is stated pleaded in Para 4 of the Application that Appellants had applied for Development and Colonization of the land which came into existence pursuant to Fard batwara. Thus, from bare perusal of the Application itself, it is apparent that Appellants were well aware about the order of Fard batwara from the date of passing of the order, and as an after thought to harass the Respondents, the Appellants had filed the instant Appeal bearing no. 27/Appeal/21-22 before the Sub- Divisional Officer."
Apparent Fact That the order dated 29.03.2010, passed by the Naib Tehsildar dated 29.03.2010 approving Fard Batwara, was never communicated to the Applicants is an established and undisputable fact. The father of the Applicants had no authority or power of attorney to act on the behalf of the Applicants. Even assuming that the father had possession of the Rin Pustika, it does not imply that the Applicants automatically had knowledge of the contents and details of the Fard Batwara passed on 29.03.2010. Further, to state that to file such Appeal is an afterthought because it is the own admission of the Respondent that the Fard Batwara order was never communicated to Applicants as per the provisions of the law under section 47 of the MPLRC Act, 1959. Therefore, the relevant statements in the aforesaid para are false and against the apparent facts on record.
17. That the Respondents have committed offences under Sections 191, 192, 193, 196, 199, 200, 205 and 209 of the Indian Penal Code, 1860, and therefore, the Applicants seek the benevolent indulgence of this Hon'ble Court to take cognizance of the present Application filed under Section 340 of Code of Criminal Procedure Act, 1973. The Applicants seek justice as per the rule of law."
7. As per the applicants the offences which have been committed by the non-
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 8applicants are under Section 191, 192, 193, 196, 199, 200, 205 and 209 of the IPC. However when the averments as made by them in their application in paragraph 15 to 17 are taken note of it is observed that therein the alleged falsity on behalf of the non-applicants is that they did not produce any tangible evidence to support their contentions and therefore their statements are apparently false and untenable on the face of the record. The statements as made in the written submissions filed by the non-applicants in the Writ Appeal are false and against the apparent facts on record.
8. The contentions of the applicants are primarily based upon the fact that the statements made by the non-applicants are false because no tangible evidence to support the averments made by them was produced in the Writ Appeal. Only because an averment or a claim made is not supported by evidence cannot ipso facto lead to a conclusion that the same was false. A claim made and not proved cannot be deemed to be a false claim. This would be more so when in the Writ Appeal no finding has been recorded to the effect that the non-applicants have not been able to support the claim made by them by any tangible evidence. In fact in the Writ Appeal, which has been finally decided, no finding on merits of the case more so in respect of the statements made by the non-applicants has been rendered. There is no finding given by this Court that the non-applicants have failed to prove their claim by any evidence.
9. It is always open for a party to make claims in the legal proceedings which cannot be said to be false only for the reason that they are not proved unless it is shownthat they are false. In the entire application preferred by the applicants there is no averment as to in what manner the claim as made by the non- applicants was false. Only bald allegations have been levelled without the same being supported by any tangible material. All the allegations refer to questions of facts which are highly disputed between the parties. It may also be noticed that Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 24-04-2024 15:31:37 9 the Writ Appeal has not been decided on merits whereas the Writ Petition out of which the same arose had been decided on merits and against the applicants themselves and the final order was in favour of the non-applicants. Hence it is highly unjustified on part of the applicants to contend that the claim made by the non-applicants is false when the claim as set up by them alone has been disbelieved and negatived on facts.
10. A perusal of all the provisions regarding which falsity is stated to have been made by the non-applicants reveals that there is nothing to suggest that any false statement has been made by the non-applicants or that they have fabricated any false evidence and have produced the same before the Court. It has been not shown that they have used any evidence in the proceedings knowing the same to be false. Only because their claim is in the opinion of the applicants false on facts it cannot be stretched to such an extent to mean that the non-applicants have given, fabricated or used any false evidence. There is not an iota of material on record to suggest that any offence as alleged has been committed by the non- applicants in the proceedings in the Writ Appeal. The allegations made by the applicants are all in the air and have no standing in the eye of law and do not deserve to be entertained even to the slightest extent.
11. Thus in view of the aforesaid discussion, we do not find any ground for initiating any proceedings against the non-applicants. The application being devoid of merits is hereby dismissed.
(S.A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
ns
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 24-04-2024
15:31:37